N.Y. Comp. Codes R. & Regs. tit. 18 § 431.19

Current through Register Vol. 46, No. 25, June 18, 2024

Section 431.19 - Conditional release of youth placed pursuant to a delinquency adjudication

(a) Pursuant to section 398(3-a) and 404 of the Social Services Law, a youth placed pursuant to a delinquency adjudication under article 3 of the Family Court Act with a local social services district may be conditionally released from a facility or program to aftercare if:

(1) it is consistent with the needs and best interests of the youth;

(2) suitable care and supervision can be provided; and

(3) there is a reasonable probability the youth can be conditionally released without endangering public safety.

(b)Limitation on granting conditional release.

Any youth placed pursuant to a delinquency adjudication who is absent from a facility or program without consent of the director of such facility or program shall not be granted conditional release while absent without consent solely by reason of such absence. For purposes of this section, absence without consent occurs when a youth disappears, runs away or is otherwise absent without the consent of the person(s) or facility in whose care the youth has been placed.

(c) A youth placed pursuant to a delinquency adjudication shall be conditionally released to a parent(s), relative or guardian, unless in the opinion of the local social services district there is no suitable parent, relative or guardian to whom such youth can be released. In such cases, the local social services district may conditionally release the youth to any other suitable person; provided that when such person has no legal relationship with such youth, the district shall advise the person of the procedures for obtaining custody or guardianship of the youth.

(d) Where a youth placed pursuant to a delinquency adjudication is over the age of 18 at the time of conditional release, and there is no suitable parent, relative or guardian to whom such youth can be released, the local social services district may conditionally release the youth to either a suitable person or to his or her own recognizance, provided there is at least one adult whom the local social services district has identified as primary support for such youth, or a program, such as a transitional independent living support program, which will provide additional supports and services for the youth.

(e) A conditionally released youth placed pursuant to a delinquency adjudication shall continue to be the responsibility of the local social services district for the period provided in the order of placement, including under such circumstances for a youth whose release resource dies, is incarcerated or becomes otherwise incapacitated. Additionally, the local social services district may provide clothing, services and other necessities for any conditionally released juvenile delinquent, as may be required including medical care and services not provided to such juvenile delinquent as medical assistance for needy persons pursuant to title 11 of article 5 of the Social Services Law.

(f)Conditions of release.

(1) Prior to conditional release, such youth must agree, in writing, to follow all conditions established for his or her release and acknowledge that a violation of the conditions can result in a modification of the terms and conditions or a revocation of his or her release.

(2) The conditions for such youth's release shall be individualized and consistent with the youth's needs and abilities and may include, but are not necessarily limited to:

(i) keeping a daily schedule, which may include a reasonable curfew, set by the youth's aftercare worker or case manager;

(ii) participating in programs and services as required;

(iii) enrolling in or attending a school or education program leading to a high school diploma if the youth is subject to article 65 of the Education Law or elects to participate in an education program leading to a high school diploma. If such release occurs during the summer recess, enrollment or attendance must be upon the commencement of the next school term;

(iv) seeking employment or enrolling in and attending a vocational program following release when the youth is not subject to article 65 of the Education Law and does not elect to participate in an educational program leading to a high school diploma or college education;

(v) refraining from activities prohibited in the conditions of release, including associating with a person(s) whose influence would have a detrimental effect;

(vi) abstaining from the use of alcoholic beverages, controlled substances, habit forming drugs not lawfully prescribed, or any other harmful or dangerous substance;

(vii) reporting to the youth's case worker, as directed;

(viii) not operating a motor vehicle without a license; and

(ix) adhering to any other requirements deemed appropriate by the youth's aftercare worker or case manager.

(3) In addition to the conditions of release, the youth shall endorse an attestation to a statement written in language accessible to such youth, which indicates:

(i) that the youth understands that they remain under the custody of the local social services district; and

(ii) that violation of the terms and conditions of release may lead to modification of the terms or revocation of the conditional release.

(g) Prior to release, such youth and parent, relative, guardian or other suitable person shall be oriented to the conditions the youth must follow, the structure of the conditional release program where relevant, and the responsibilities of the staff working with the youth and family, as well as written documentation of the conditions of release and verbal notice that a violation of any condition may result in revocation of the release. A copy of all materials shall be mailed to the parent(s), relative, guardian or other suitable person to whom the youth is released, as well as provided in person where possible.

(h)Modification of terms and conditions of release.

(1) Terms and conditions of release may be modified, as necessary.

(2) The youth's aftercare worker shall document the reasons why the modification is necessary, including specific new conditions to be added or deleted or conditions to be amended.

(3) All attempts by the program or staff to support the success of the conditional release and the application of graduated sanctions to address concerns in the community shall be documented.

(4) Any proposed modification to the conditions of release must be reviewed and approved by the aftercare worker supervisor in consultation with the local social services district case manager.

(5) The caseworker shall confer with the youth and parent/guardian or release resource before modifying the conditions of release. If a youth is absent without consent and cannot be located, the caseworker may modify the conditions of release without conferring with the youth.

(6) All modifications of conditions of release must be in writing and signed by the youth and their parent, relative, guardian or other suitable person, where applicable, in the same manner as the original conditions of release.

(i)Revocation of release, grounds.

(1) Violations of conditions. The conditional release of a youth placed pursuant to a delinquency adjudication may be revoked when such youth has violated one or more of the terms and conditions of the conditional release.

(2) The conditional release may be revoked if there is a change of circumstances resulting in a determination that revocation of such youth's release is consistent with promoting the welfare of the youth and the need to protect the community.

(j)Revocation of release, documentation.

(1) The youth's aftercare worker shall prepare a written recommendation to revoke the youth's conditional release. The recommendation shall specify the factual circumstances requiring revocation of the release, including:

(i) the specific conditions violated and the facts that demonstrate that the conditions were violated; and

(ii) the use of graduated response by the case worker or aftercare staff to avoid revocation where appropriate; or

(iii) facts which demonstrate a change of circumstances resulting in the determination that revocation is consistent with promoting the welfare of the youth and the need to protect the community.

(2) The written recommendation shall be reviewed by the youth's local social services district case manager for final approval.

(k)Revocation of release process.

(1) The local social services district must provide the youth, and for youth less than 18 years of age the youth's parents or guardians, with notice in a manner set forth by OCFS at least 5 days prior to the hearing, of the reasons for revocation and an opportunity for the youth to be heard, including the rights set forth in paragraph (3) of this subdivision.

(2) The youth may be permitted to remain in the community until his or her opportunity to be heard occurs unless there are reasonable grounds to believe the youth will not appear for any mandatory appearances.

(i) A social services official of a local social services district with an approved close to home plan may issue a warrant authorizing a peace officer acting pursuant to his or her special duties or a police officer to apprehend the youth placed pursuant to a delinquency adjudication who has been determined to have violated the conditions of release and return such youth to an authorized agency, or for limited secure juvenile delinquents to a detention facility. An employee of a local social services district with an approved close to home plan may be designated, without a warrant, to apprehend a youth who has violated his or her conditions of release.

(ii) All other local social services districts, the local social services commissioner or an authorized representative may petition the family court having jurisdiction over the youth placed pursuant to a delinquency adjudication for a warrant for the return of such youth to placement pending the outcome of the youth's opportunity to be heard.

(3) Revocation hearing.

(i) If the youth has been returned to custody pending the opportunity to be heard, the hearing must take place within 20 days from the date the youth was taken into custody; if the youth has remained in the community, the hearing must take place within 20 days from the date the youth was provided notice of the hearing.

(ii) Each party has the right to be represented by counsel at the hearing; to examine and present documentary evidence; to testify; to produce, compel the attendance of, and examine witnesses; and to cross-examine witnesses.

(iii) The official presiding over the hearing shall be an attorney who is not an employee of the local social services district or the authorized agency responsible for such child and who shall be authorized by the local social services district to make a determination regarding the child's release. The hearing officer shall have all the powers conferred by law to acquire attendance of witnesses and the production of books and records and to administer oaths and to take testimony.

(iv) A verbatim record of the hearing shall be made.

(v) The record of the hearing shall be confidential, but it may be examined by either party, including the child, their parent, relative, guardian or other suitable person to whom they were released, or their designated legal representative.

(vi) The hearing officer shall issue a written decision, within four days following the hearing, determining whether substantial evidence supports a finding that the youth has violated one or more of the terms and conditions of the conditional release or there has been a change of circumstances such that revocation of release is consistent with promoting the welfare of the youth and the need to protect the community. If the hearing officer decides that substantial evidence supports such a finding, the hearing officer shall consider whether revocation of the youth's conditional release is in the youth's best interest and is necessary to protect the community. If not, the hearing officer must order the youth's continuation on aftercare, with or without modification of the conditions of release, as the hearing officer deems appropriate. If substantial evidence does not support such a finding, the hearing officer must order the youth be continued on aftercare without modification of the conditions of release.

(l)Voluntary return.

A youth placed pursuant to a delinquency adjudication on conditional release status who has received a notice of a revocation may waive the right to be heard and voluntarily return to the placement. A youth under the age of 18 years may not waive the right to be heard without first consulting with his or her legal representative. Any waiver of the right to be heard must be signed by the youth and the youth must fully understand the significance of the act.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 431.19

Adopted New York State Register December 11, 2019/Volume XLI, Issue 50, eff. 12/11/2019